A weblog for students engaged in doctoral studies in the field of human rights. It is intended to provide information about contemporary developments, references to new publications and material of a practical nature.

Monday, 4 April 2011

Richard Goldstone did not Retract the Report

It is being widely reported that Richard Goldstone has retracted the allegations in the report of the Commission he chaired into Operation Cast Lead, the Israeli attack on Gaza in December 2008 and January 2009.

I have read Richard Goldstone’s statement in the Washington Post. While the tone is certainly more indulgent towards Israel, I do not see it as a retraction of the primary allegations in the report.

The central element in Judge Goldstone’s statement in the Washington Post last Friday is his conclusion, based upon information he says was not available when the Commission issued its Report, that ‘civilians were not intentionally targeted [by Israel] as a matter of policy’.

The discussion of intentional targeting of civilians was only one component of the Report and, in my view, it was never at the core of the Commission’s conclusions. It is discussed in paragraphs 704-885 of the 1,979 paragraph report. It consists of one heading among thirteen dealing with violations of international law perpetrated by Israel. Israel is now calling upon the Human Rights Council to retract the Report. Even if it were to retract paragraphs 704-885 of the Report, this would change nothing about the fundamental conclusions of the Commission.

In the Report, the Commission examined eleven incidents of alleged intentional targeting of civilians. I have reread the Commission’s Report in light of Judge Goldstone’s statement. I do not believe that the Commission ever alleged that there was an Israeli policy of intentionally targeting civilians. The furthest it goes, I think, is to talk of a ‘low threshold for the use of lethal fire against the civilian population’ (para. 44), which is not the same thing as intentionally targeting civilians. Judge Goldstone could not retract a conclusion that the Commission did not make.

We are talking here of targeting in terms of firing upon civilians in order to kill them. Elsewhere in the Report, the Commission speaks of various other measures that were aimed at civilians, but I do not read Judge Goldstone’s statement last Friday as being a reference to this part of the Report.

There are a couple of ambiguous passages in the Report that might be taken as a charge that Israel intentionally targeted civilians for killing. Thus, at para. 1215, it says that ‘disproportionate destruction and violence against civilians were part of a deliberate policy’. Similarly, at para. 1887, it refers to ‘a deliberate policy of disproportionate force aimed not at the enemy but at the “supporting infrastructure.” In practice, this appears to have meant the civilian population.’

But these statements have to be read in the context of the entire report. It is a condemnation of the attacks upon the civilian infrastructure and the objective of Cast Lead, which was to punish the civilian population. For example, para. 1884: ‘In this respect, the operations were in furtherance of an overall policy aimed at punishing the Gaza population for its resilience and for its apparent support for Hamas, and possibly with the intent of forcing a change in such support.’ Judge Goldstone did not in any way retract this part of the Report.

At various points, the Report speaks of Israeli policy and its impact upon civilians. Thus, at para.1027, it notes the ‘overall policy of disproportionate destruction of a significant part of Gaza’s infrastructure’. Also, at para. 1891: ‘1891. the destruction of food supply installations, water sanitation systems, concrete factories and residential houses was the result of a deliberate and systematic policy by the Israeli armed forces. It was not carried out because those objects presented a military threat or opportunity, but to make the daily process of living, and dignified living, more difficult for the civilian population.’

None of these conclusions of the Report are at all affected by Judge Goldstone's statement in the Washington Post.

The analysis of the Goldstone Report referred to the so-called ‘Dahiya Doctrine’ that was developed in Lebanon in 2006. It consists of brutal counter-attack that in effect punishes civilians. In this respect, the Report cited Israeli foreign minister Tsipi Livni, at para. 1206, who said: ‘Israel is not a country upon which you fire missiles and it does not respond. It is a country that when you fire on its citizens it responds by going wild – and this is a good thing.’ Also, Deputy chief of staff, Maj. Gen. Dan Harel, who said (para. 1212):

This operation is different from previous ones. We have set a high goal which we are aiming for. We are hitting not only terrorists and launchers, but also the whole Hamas government and all its wings. […] We are hitting government buildings, production factories, security wings and more. We are demanding governmental responsibility from Hamas and are not making distinctions between the various wings. After this operation there will not be one Hamas building left standing in Gaza, and we plan to change the rules of the game.

In his statement last Friday, Richard Goldstone also noted the final report of the follow-up commission chaired by Judge McGowan David, which found that Israel had devoted significant resources to investigate allegations of misconduct, whereas Hamas had done nothing. He said he shares the concerns of the McGowan Davis report that few of Israel’s inquiries have been concluded.

Richard Goldstone’s statement is being greeted with glee in Israel and dismay in Palestine. The extent of what he said should not be misunderstood. He did not repudiate the substance of the Report nor did he cast doubt on most of its conclusions, which are very damning.

It has always been my view that the reaction to Cast Lead was distorted by a focus on violations of international humanitarian law. Both Israel and Hamas write their own rules in this respect, and both sides are in the wrong. That obvious fact emerges from the Goldstone Report. But the real issue, and the real reason why there was such outrage about Cast Lead, is that after more than sixty years the Palestinian people are still being denied their right to self-determination. The conflict in Gaza brings with it terrible human suffering but it is a sideshow to the main act. The violations of humanitarian law are unacceptable, but they should not distract the focus from Palestinian self-determiantion.

My earnest hope is that the current turmoil in the Middle East will be a catalyst. The autocratic regimes in the Arab countries are an anachronistic blot on the world. Their days are clearly numbered. That will leave only one anachronistic blot on the region left to be resolved.

5 comments:

==‘civilians were not intentionally targeted [by Israel] as a matter of policy’==

He is quoted saying that, but he actually said only that the investigations of the Israeli military suggest it: “the investigations published by the Israeli military… indicate that civilians were not intentionally targeted as a matter of policy.”

Hi BillThe WaPo OpEd astonished me. I was delighted to see your article saying he has not retracted the report. But he really behaved very badly in issuing such a statement independently of the other team members. Ask yourself is it possible for the UN ever to give him a similar commission.Best wishes to you and Poppyfrom the costa. Austin

It is a sign of a major jolt when the proponents of the Goldstone report are up in arms and there is a blogoshere storm. This major jolt is understandable, any person with half-brain and dignity will agree that Israel did not intentionally target civilians.

One may argue that Israel targeted objects that have economic use, but the Law of Armed Conflict does not prohibit economic warfare against a beligerent, otherwise, for example, there wud have been no explicit prohibition on starvation of the population. It is sad but inevitable.

But the that aside, the most stinging and damaging accusation, a true modern-day blood libel WAS retracted, at least by Goldstone himself, no matter how Israel-haters wiggle and juggle.

The Editorial Team

W. Schabas, Y. McDermott, J. Powderly, N. Hayes

William A. Schabas is professor of international law at Middlesex University in London. He is also professor of international criminal law and human rights at Leiden University, emeritus professor human rights law at the Irish Centre for Human Rights of the National University of Ireland Galway, and an honorary professor at the Chinese Academy of Social Sciences, in Beijing and Wuhan University. He is the author of more than 20 books and 300 journal articles, on such subjects as the abolition of capital punishment, genocide and the international criminal tribunals. Professor Schabas was a member of the Sierra Leone Truth and Reconciliation Commission. He was a member of the Board of Trustees of the United Nations Voluntary Fund for Technical Cooperation in Human Rights and president of the International Association of Genocide Scholars. He serves as president of the Irish Branch of the International Law Association chair of the Institute for International Criminal Investigation. He is an Officer of the Order of Canada and a member of the Royal Irish Academy. Here is the full c.v.

Dr Yvonne McDermott is a Lecturer in Law in Bangor University, UK, where she is also Director of Teaching and Learning and Director of the Bangor Centre for International Law. Yvonne is a graduate of the National University of Ireland, Galway (B. Corp. Law, LL.B.), Leiden University (LL.M. cum laude) and the Irish Centre for Human Rights (PhD). Her research focuses on fair trial rights, international criminal procedure and international criminal law. Her first monograph, Fairness in International Criminal Trials, will be published by OUP in 2015.

Niamh Hayes has been the Head of Office for the Institute for International Criminal Investigations (IICI) in The Hague since September 2012. She is about to complete her Ph.D. on the investigation and prosecution of sexual violence by international criminal tribunals at the Irish Centre for Human Rights, National University of Ireland Galway. She previously worked for Women's Initiatives for Gender Justice as a legal consultant, and as an intern for the defence at the ICTY in the Karadzic case. She has lectured on international criminal law and international law at Trinity College Dublin and, along with Prof. William Schabas and Dr. Yvonne McDermott, is a co-editor of The Ashgate Research Companion to International Criminal Law: Critical Perspectives (Ashgate, 2013). She is the author of over 45 case reports for the Oxford Reports on International Criminal Law and has published numerous articles and book chapters on the investigation and prosecution of sexual and gender-based violence as international crimes.

Joseph Powderly is Assistant Professor of Public International Law at the Grotius Centre for International Legal Studies, Leiden University. Between September 2008 and January 2010, he was a Doctoral Fellow/Researcher at the Irish Centre for Human Rights, where he worked, among other projects, on a Irish Government-funded investigation and report into the possible perpetration of crimes against humanity against the Rohingya people of North Rakhine State, Burma/Myanmar. He is currently in the process of completing his doctoral research which looks at the impact of theories of judicial interpretation on the development of international criminal and international humanitarian law. The central thesis aims to identify and analyze the potential emergence of a specific theory of interpretation within the sphere of judicial creativity. Along with Dr. Shane Darcy of the Irish Centre for Human Rights, he is co-editor of and contributor to the edited collection Judicial Creativity in International Criminal Tribunals which was published by Oxford University Press in 2010. He has written over 80 case-reports for the Oxford Reports on International Criminal Law, as well as numerous book chapters and academic articles on topics ranging from the principle of complementarity to Irish involvement in the drafting of the Geneva Conventions. In December 2010, he was appointed Managing Editor of the peer-reviewed journal Criminal Law Forum. His research interests while focusing on international criminal and international humanitarian law also include topics such as the history of international law and freedom of expression.

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Interested in PhD studies in human rights?

Students interested in pursuing a doctorate in the field of human rights are encouraged to explore the possibility of working at Middlesex University under the supervision of Professor William A. Schabas and his colleagues. For inquiries, write to: w.schabas@mdx.ac.uk.